California Business Litigation Blog

In a lawsuit filed by a Los Angeles Police Officer injured while accompanying an arrestee being transported by ambulance, the Court of Appeal upheld the trial court’s decision that the ambulance driver was protected by the Medical Injury Compensation Reform Act (MICRA).

Officer Randy Canister was injured during the ambulance ride when the ambulance hit a curb, alledgely to avoid a car while enroute to a hospital. Canister was not wearing a seatbelt. Immediately following the accident, Canister provided a written statement which stated that he had not worn a seat belt as a “tactical” decision. He later recanted that statement and claimed that he did not know the ambulance had seatbelts and no one told him.

Canister claimed that Emergency Ambulance Service (EAS) was operating the ambulance negligently, and that driving the ambulance was not within the scope of protection provided to emergency health care providers under MICRA.

EAS presented evidence that all ambulance drivers in California, including the one driving at the time of this accident, must have special licenses issued by DMV to operate an ambulance. EAS also presented relevant case law and precedent illustrating that driving an ambulance was within the definition of “professional services” protected by MICRA.

In the opinion by Justice Madeleine Flier, the Court of Appeal rejected Canister’s argument, concluding that EMTs are healthcare providers, and that any negligence by EMTs in driving an ambulance constitutes professional negligence.

Some cases simply should not be appealed and this was one of them.

Every good trial attorney knows which of his/her cases should go to trial,

Continue reading "CA Court of Appeal Affirms EMT’s Protection Under MICRA" »

Posted by Richard Oppenheim | Permalink | Email This Post

Posted In: Business Litigation

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Yesterday, the U.S. Supreme Court held intact a ruling that said Novato school district officials violated a student's freedom of expression when they confiscated a high school newspaper because of an editorial criticizing immigration. The case is Novato Unified School District vs. Smith, 07-783.

A California appeals court in San Francisco ruled last May, upholding a California law that protects freedom of the press in public schools even more strongly than the constitutional rights guaranteed under the First Amendment.

Tuesday's Supreme Court order, which also denied a hearing sought by the Novato Unified School District, means that students in California "will be able to publish very controversial political opinions without fearing retribution," said Paul Beard of the Pacific Legal Foundation, a lawyer for the student who wrote the editorial.

After some students and parents protested High school senior Andrew Smith’s editorial, school district officials pulled remaining copies of the newspaper out of circulation and sent a letter to parents saying the editorial shouldn't have been published.

Along with his father, Smith sued in Marin County Superior Court, claiming that the district had illegally censored the piece and subjected him to public reprimand for expressing unpopular positions.

A judge dismissed the suit, noting that the editorial had been published and that the student hadn't been disciplined. But the First District Court of Appeal said the district had violated Smith's rights by confiscating the paper and sending the message to parents.

The appeals court said state law guarantees freedom of the press on campus unless an article is obscene or libelous, or unless it creates a clear and present danger of lawbreaking or disorder on campus.

The school district "succumbed to the fear of disruption and discontent" when it removed the newspaper from circulation, the state court said. Smith was awarded $1 and a declaration that his rights had been violated.

The U.S. Supreme Court ruled in 1988 that public school officials could censor student newspapers and remove sensitive topics without violating the First Amendment. California, however, is one of about a half-dozen states with laws that explicitly protect student expression even if it is controversial.

Continue reading "US Supreme Court Protects California Student’s Freedom of Expression" »

Posted by Richard Oppenheim | Permalink | Email This Post

Posted In: Education   Education Law   Freedom of Speech   School District Law   School Lawsuit

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The California Supreme Court reversed a decision by the Court of Appeals allowing a class action lawsuit to proceed over disclosure of chemically color enhanced salmon sold in many California grocery stores. Named in the lawsuit are Albertson’s Inc., Safeway Inc., The Kroger Co., Trader Joe’s, Costco Wholesale Corp., Whole Foods Market Inc., Bristol Farms Inc., Ocean Beauty Seafoods Inc., and various subsidiaries.

Plaintiffs in Los Angeles, Alameda and Monterey counties consolidated lawsuits in 2004 claiming that the named stores sold fish with chemical additives canthaxanthin and astaxanthin. The additives allegedly changed the grayish color of farm raised salmon to resemble the color of wild salmon. The lawsuit claims that the stores’ failure to disclose the use of chemical additives to consumers was misleading. The lawsuit also claims possible concerns exist over farm raised salmon and consuming artificial coloring agents.

Specifically the lawsuit contains causes of action for unfair or deceptive trade practices under the Consumer Legal Remedies Act; false and misleading advertising; negligent misrepresentation and unfair and unlawful business acts and practices in violation of the state’s Unfair Competition Law, which includes the Sherman Law.

In the unanimous opinion the justices held that the Federal Food, Drug, and Cosmetic Act does not preempt deceptive marketing claims under California’s Sherman Food, Drug, and Cosmetic Law because Congress explicitly intended to allow states to establish their own disclosure requirements and remedies for violations, and because the plaintiffs’ claims were based on state, rather than federal, law.

What is the true color of your salmon? Only your grocery store knows for sure, and until this lawsuit is resolved, they aren’t telling!

Posted by Richard Oppenheim | Permalink | Email This Post

Posted In: Business Litigation   False Advertising

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Lisa Krinsky was formerly president and CEO of SFBC International in Florida. On a financial message board hosted by Yahoo, Krinsky was the target of some very negative, crude and vulgar comments. Krinsky filed suit against 10 pseudonymous posters for libel and interference with contractual/business relationships.

The problem was that she had to identify the people she was suing. Krinsky attempted to discover the defendants’ identities by serving a subpoena on Yahoo. Yahoo notified Doe 6 that it would comply with the subpoena in 15 days unless a motion to quash or other legal objection was filed.

Doe 6 then moved in superior court to quash the subpoena on the grounds that (1) plaintiff had failed to state a claim sufficient to overcome his First Amendment rights for either defamation or interference with a contractual or business relationship, and (2) plaintiff's request for injunctive relief was an invalid prior restraint.

Santa Clara Superior Court Judge Socrates P. Manoukian concluded that the totality of circumstances justified the relief Krinsky was seeking, and denied Doe 6’s motion to quash.

Doe 6 appealed.

On appeal, Justice Franklin D. Elia wrote for the court that posters to Internet message boards had a First Amendment right to shield their identity, and that this right could only be overcome if Krinsky could make a prima facie showing that a case for defamation existed.

Directly from the opinion, which can be found HERE “We thus conclude that Doe 6's online messages, while unquestionably offensive and demeaning to plaintiff, did not constitute assertions of actual fact and therefore were not actionable under Florida's defamation law. Because plaintiff stated no viable cause of action that overcame Doe 6's First Amendment right to speak anonymously, the subpoena to discover his identity should have been quashed.”

While we in no way condone the vulgarity and crudeness used by Doe 6 (as quoted in the opinion), we commend the California Court of Appeals for protecting our free speech rights related to the Internet.

Posted by Richard Oppenheim | Permalink | Email This Post

Posted In: Business Litigation   Internet

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Deborah and Lonnie Bolden, and David and Dolores Contreras filed a lawsuit this week claiming that KB Home and a unit of Countrywide inflated appraisals, defrauding them out of tens of thousands of dollars.

The Boldens say they paid $70,000 more for their home than neighbors who used different appraisers. The lawsuit alleges that Countrywide and KB "conspired with affiliated appraisers to generate fraudulent" appraisal reports.

The Boldens' attorney, tells of a neighbor who had used their own appraiser and got KB to reduce the price of their home by $61,000. He also said that to keep houses at their contracted price, KB exaggerated appraisals during a falling market in 2005 and 2006.

The lawsuit seeks restitution, compensatory and punitive damages and class-action status for all California KB Home customers who bought homes from August 2005 to July 2006 and used Countrywide financing.

KB Home issued a statement saying "we believe that our full and complete investigation will show these allegations to be without merit."

This comes on the heels of a Whistleblower lawsuit filed against Countrywide KB Home Loans (joint venture) by former Regional VP Mark Zachary. In the lawsuit Zachary claims to have been fired after reporting that employees were using false income amounts and inflated appraisals to facilitate the closing of home loans.

Continue reading "KB Home and Countrywide Sued Over “Inflated” Appraisals" »

Posted by Richard Oppenheim | Permalink | Email This Post

Posted In: Business Litigation   Real Estate

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